Opinion
No. 3:97-CR-278-R, No. 3:99-CV-606-R.
May 14, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS:
Type of case:
Mustapha O. Awe, Petitioner, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
Parties:
Petitioner is a federal prisoner currently incarcerated at F.C.I. Big Spring, Texas. Respondent is the United States of America.
STATEMENT OF THE CLAIM
On August 28, 1997, the government indicted Petitioner in a two-count indictment, charging him with possession with intent to distribute cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. § 841 (a)(1). On May 15, 1998, Petitioner pled guilty to Count 1 of the Indictment. On November 4, 1998, after a sentencing hearing on October 30, 1998, the trial court sentenced Petitioner to a term of confinement of 60 months, with a five-year term of supervised release to follow the term of confinement. The sentence included a special condition that upon completion of his term of imprisonment, Petitioner be surrendered to immigration authorities for deportation proceedings. Petitioner received a $100 special assessment. The Court also recommended that Petitioner be committed to the nearest institution to the Dallas-Fort Worth area where Petitioner could participate in a comprehensive drug treatment program.
On March 24, 1999, Petitioner filed a petition to set aside, vacate, and correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner is a deportable alien under 8 U.S.C. § 1227. He is not a citizen of the United States; rather, he is a native and citizen of Sierra Leone. At his sentencing hearing and prior to the imposition of his sentence, Petitioner, through his counsel, acknowledged that he would be deported. The government did not move for a downward departure under United States Sentencing Guideline ("USSG") § 5K2.0 based upon Petitioner's admission that he is a deportable alien. The government filed a sealed motion for downward departure based upon Petitioner's substantial assistance to the government. The guideline range for Petitioner's sentence was 70-87 months. The trial court departed downward to Petitioner's sentence of 60 months.
Currently, Petitioner is confined at the Big Spring Correctional Center, which is a private contract prison operated by Cornell Corrections through a subcontract between the City of Big Spring, Texas and the Federal Bureau of Prisons. There is no 500-hour drug treatment program available for inmates incarcerated in private contract correctional facilities. Petitioner contends that he was denied additional good time credit that he would be eligible for if he were a citizen of the United States, including prison industries and meritorious good time. He also claims he has been denied the opportunity to attend the drug treatment program and denied prerelease custody of up to six months. Petitioner alleges that he has been denied an estimated 18-24 months of good time that would have reduced the time he would have to serve in prison. Petitioner claims that if he was a citizen of the United States, he would be entitled to these credits and, since he is not, he is being discriminated against because he received a harsher sentence than those similarly situated who are citizens of the United States.
The issues raised by the motion have been briefed, and the Court has determined that a hearing is not necessary and is prepared to make a recommendation based upon the record before the Court.
STANDARD OF REVIEW
The scope of post-conviction relief pursuant to 28 U.S.C. § 2255 is limited; the statute affords judicial review of constitutional claims which could not have been raised on direct appeal and would, if unaddressed, result in a complete miscarriage of justice. See United States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992); see also United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A final conviction is challengeable under this statute only if (1) a sentence is unconstitutional or imposed in violation of federal law; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum penalty authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; see Hill v. United States, 368 U.S. 424, 426-27 (1962).
Before a movant may raise an issue for the first time in a § 2255 proceeding, he must show "cause" for his procedural default in failing to raise the issue on appeal and "actual prejudice" resulting from the error. See United States v. Frady, 456 U.S. 152, 168 (1982); see also United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). This high hurdle ensures that final judgments command respect and that their binding effect is not disturbed by an endless series of post-conviction collateral attacks. Frady, 456 U.S. at 165-66.
To the extent Petitioner challenges the Bureau of Prisons' alleged failure to execute his sentence properly and give him the credit he is due, his claims should have been brought in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, rather than a motion to vacate sentence pursuant to § 2255. Reyes-Requena v. United States, 243 F.3d 893, 900 (5th Cir. 2001). Section 2241 petitions must be filed in the district of the prisoner's incarceration. 28 U.S.C. § 2241 (a). Therefore, this Court has jurisdiction to hear Petitioner's § 2241 claims because Petitioner is incarcerated in the Northen District of Texas.
EXAMINATION OF THE CLAIMS Procedural Default of Petitioner's Claims
Petitioner did not bring on appeal his claims that the trial court should have granted an additional downward departure in the sentencing guideline range based upon Petitioner's status as a deportable alien and his acceptance of deportation. Petitioner has not shown cause and prejudice for failing to bring those claims on appeal. Accordingly, the claims are procedurally defaulted and the Court need not consider them. Nevertheless, assuming Petitioner's claims should be considered on the merits, they should be denied.
Downward Departure When Alienage Creates a Fortuitous Increase in the Seven of a Sentence
A district court's failure to grant a downward departure is not a violation of the law unless the district court's refusal to depart is based on the mistaken belief that the court lacked the discretion to depart. United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994). The record does not show any such error by the trial court in this case.
Petitioner nonetheless claims that the trial court should have granted him an additional downward departure because Petitioner, as a deportable alien, is (1) not receiving the benefit of attending and completing a discretionary 500-hour drug treatment program, (2) not allowed to earn industrial and meritorious good time credits, and (3) not eligible for pre-release before the completion of his sentence. A district court may depart from the applicable Sentencing Guideline range only if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553 (b). The Guidelines enumerate certain factors that can never be bases for departure, such as race and religion, but do not otherwise limit, as a categorical matter, potential bases for departures. Koon v. United States, 518 U.S. 81, 94 (1996).
The facility at Big Spring, Texas does not have the 500-hour treatment program, but it does have some in-house drug treatment programs, such as a one-year program. Petitioner has not applied for any drug treatment program.
Before the United States Supreme Court decided Koon, the Fifth Circuit Court of Appeals held that in the case of a deportable alien convicted of bank fraud, "[c]ollateral consequences, such as the likelihood of deportation or ineligibility for more lenient conditions of imprisonment, that an alien may incur following a federal conviction are not a basis for downward departure." United States v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993). After Koon, the Fifth Circuit Court of Appeals held that a defendant's status as a deportable alien, as an inherent element of an immigration offense, is not a basis for downward departure. United States v. Garay, 235 F.3d 230, 234 (5th Cir. 2000). However, the Fifth Circuit court has not had occasion to reconsider Nnanna to decide whether, after Koon, a defendant's status as a deportable alien who has committed an offense other than an immigration offense would be a basis for a downward departure based upon the likelihood of a fortuitous increase in the severity of his sentence.
Petitioner relies upon United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994). Some circuit courts have concluded, as the court did in Smith, that "a downward departure may be appropriate where the defendant's status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence." Id., 27 F.3d at 655 (emphasis added). The court observed in Smith for a departure on such a basis to be reasonable, the difference in severity must be substantial and the sentencing court must have a high degree of confidence that it will in fact apply for a substantial portion of the defendant's sentence. Id. The D.C. Circuit explicitly stated that it expects such departures to be "`highly infrequent.'" Id. The United States Courts of Appeal for the Seventh and Fourth Circuits have found downward departures based upon a defendant's status as a deportable alien to be allowable in some circumstances. See United States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997); United States v. DeBeir, 186 F.3d 561, 569 (4th Cir. 1999).
Even if the Fifth Circuit Court of Appeals were to adopt the approach taken by the D.C. Circuit in Smith, the Court is not convinced that had Petitioner timely raised a claim for a downward departure based on his status as a deportable alien, the facts of his case would have taken his case out of the heartland, as required by Koon and Smith. Petitioner's claim that if he was an American citizen he would be entitled to complete the 500-hour treatment program and receive a benefit of up to a one-year reduction in his sentence is purely speculative. He has never attempted to enroll in a 500-hour treatment program. Additionally, completion of the program does not guarantee a reduction in an attendee's sentence. Venegas v. Henmans, 126 F.3d 760, 763 (5th Cir. 1997); Wottlin v. Fleming, 136 F.3d 1032, 1035 (5th Cir. 1998). Because the Bureau of Prisons has complete discretion with respect to such programs, Petitioner could not have proved at the time of his sentencing that he would be excluded from a 500-hour program and early release, and that the unavailability of this program and release amounted to a fortuitous increase in the severity of his sentence. The facts do not support Petitioner's assertion that his case was atypical in this regard.
Similarly, Petitioner's claims for prison industries and meritorious good time credits are highly speculative and would not have made his case atypical at the time of sentencing. First, the Bureau of Prisons would have to assign Petitioner to a facility which provides prison industries and meritorious good time credits. Then, Petitioner would have to qualify for a job, and he would have to complete that job in such a way as to receive meritorious good time.
Petitioner claims he is entitled to this good time credit for industrial work or meritorious good time under 18 U.S.C. § 4162. However, § 4162 was repealed when the guidelines took effect on October 12, 1984. Petitioner was sentenced on December 19, 1996. The Sentencing Reform Act provides for a maximum good time credit of 54 days a year after the first year for sentences over one year. 18 U.S.C. § 3624 (b). Therefore, Petitioner's argument that his sentence would have been reduced by several years is without any merit or legal basis.
Petitioner claims that he should be receiving a six-month halfway house pre-release under 18 U.S.C. § 3624 (c), but is being denied such release because of his alien status in violation his right to equal protection of the law. Refusal to allow a deportable alien early release does not deny him equal protection of the law. See Marshall v. Reno, 915 F. Supp. 426, 433 (D.C. Cir. 1996). Moreover, the Bureau of Prisons does not categorically deny aliens access to early release programs. See BOP Program Statement 5100.05(H). Release is discretionary with the Bureau of Prison based upon the likelihood a releasee will escape. Id. Hence, Petitioner could not have proven at the time of sentencing that he would be denied pretrial release and that the denial would amount to a fortuitous increase in the severity of his sentence. Petitioner's motion to vacate his sentence on this basis is also without merit and without legal authority.
Five-Hundred-Hour Treatment Course
The Bureau of Prisons has discretion in deciding whether to allow early release upon completion of the drug treatment program. Venegas, 126 F.3d at 763; Wottlin v. Fleming, 136 F.3d at 1035. In Rublee v. Fleming, 160 F.3d 213 (5th Cir. 1998), the court held that a provision which disqualifies a prisoner from early release is a permissible exercise of the Bureau of Prisons' discretion and such regulations do not violate the Due Process or Equal Protection Clauses of the United States Constitution. Again, the Court notes that Petitioner is not eligible for the 500-hour treatment program because of his current prison assignment to a facility that does not have the program. But even if Petitioner were to attend such a program, the Bureau of Prisons would have the discretion to deny him early release.
Petitioner does not claim that he should be transferred and indeed, an inmate has no constitutional right to a particular prison assignment. See Meachum v. Fano, 427 U.S. 215 (1976). Accordingly, the Bureau's failure to assign or transfer Petitioner to a facility which has the 500-hour program is not grounds for relief.
Downward Departure for Acceptance of Deportation
Finally, Petitioner argues that he should have received a downward departure for acceptance of deportation under USSG § 5K2.0. The Fifth Circuit Court of Appeals has not address the requirements for such a departure, however, a number of sister circuits have held that a defendant seeking a downward departure for acceptance of deportation must proffer a nonfrivolous defense to deportation before a court may consider a departure on this ground. See United States v. Mignott, 184 F.3d 1288, 1291 (11th Cir. 1999) (adopting the position taken by the First, Second, Third and Ninth Circuits). A defendant's consent to a deportation against which he has no apparent defense would be a meaningless concession that fails to remove him from the heartland of other alien criminal defendants facing deportation. Id. In this case, Petitioner made no proffer of a nonfrivolous defense to deportation and presented no certification or affidavit agreeing to deportation. The district court knew that the Petitioner was expecting deportation; however, even if the proper proof and waiver had been submitted, the trial court would have had the discretion not to depart downward. Petitioner has presented no evidence to show the district court would have granted such a reduction.
RECOMMENDATION
The Court recommends that Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 be DENIED.